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HQ 223452

December 23, 1991

LIQ-9-01-CO:R:C:E 223452 SR

CATEGORY: ENTRY PROTEST

District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, MI 48266

RE: Application for Further Review of Protest No. 3801-0-003517; Protest of 19 U.S.C. 1520(c)(1) denial; Protest of 19 U.S.C. 1514 protest denial

Dear Sir:

The above-referenced protest was forwarded to our office on Application for Further Review of Protest No. 3801-0-003517, dated November 20, 1990. We have considered the facts and the issues raised; our decision follows.

FACTS:

The protestant imported fabric from Germany in 1987. The merchandise was exported to Canada and then reimported to the United States in 1989. The protestant claims that prior to exportation to Canada the fabric was cut from 54 inches in width to 44 inches in width. The fabric was entered from Canada using a transaction value agreed to by Customs that was based on the original importation price of $28.00 per yard. After reimportation the protestant filed a timely protest under 19 U.S.C. 1514 which stated that the invoice values were false and requested reappraisement. The protestant claimed that because the fabric was cut down to 44 percent of the original width it should be reappraised under a computed value for 44 percent of the value under which it was entered. Customs requested documentation, however, none was provided so the protest was denied on February 7, 1990.

On June 22, 1990, the protestant filed a request for relief under 19 U.S.C. 1520(c)(1), also requesting a value reduction. This protest was denied. The current protest requests a review of this denial under 19 U.S.C. 1520(c)(1). The protestant claims that the error he made in the entered value is a mistake of fact and therefore, he should be granted his request for reliquidation.

ISSUE:

Whether the protestants mistake in the declaration of value is a mistake of fact that would be correctable under 19 U.S.C.

LAW AND ANALYSIS:

The denial of the protest under 19 U.S.C. 1514 cannot be reviewed. According to 19 CFR 174.31, if a protest is denied the protestant must file a civil action in the United States Court of International Trade within 180 days. The protestant in this case did not exercise this right. The Court of International Trade in San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738 (1985), held that Customs does not have the authority to exercise jurisdiction over a protest after it has been denied. Once Customs has mailed the denial of a protest the plaintiff has two courses to pursue: to abandon the protest, or to bring an action to the Court of International Trade. Id at 519.

Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C.(c)(1), provides that Customs may correct certain errors, if adverse to the importer, within one year of the date of liquidation. Section 520(c)(1) provides as follows:

(c) Notwithstanding a valid protest was not filed, the appropriate customs officer may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to correct-

(1) a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of law, adverse to the importer and manifest from the record or established by documentary evidence, in any entry, liquidation, or other customs transaction, when the error, mistake, or inadvertence is brought to the attention of the appropriate customs officer within one year after the date of liquidation or exaction; . . .

In order to bring a claim under 19 U.S.C. 1520(c)(1), the mistake made must be one of fact not a mistake of law. These terms are defined in C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, C.D. 4327, 336 F. Supp. 1395 (1972), aff'd 499 F.2d 1277, 61 CCPA 90, C.A.D. 1129 (1974). A mistake of fact is defined as any mistake except a mistake of law; a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, which in reality does not exist. A mistake of law exists where a person knows
the facts as they really are but has a mistaken belief as to the legal consequences of those facts.

A mistake of law, on the other hand, exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. Hambro Automotive Corporation v. United States, 66 CCPA 113, 118, C.A.D. 1231, 603 F.2d 850, 854 (1979)(citing 58 C.J.S. Mistake, section 832).

In the case at issue, the protestant knew the value of the fabric and knew that the fabric had been cut, but is claiming that the incorrect declaration of value is a mistake of fact. The court in Universal Cooperatives, Inc., v. United States, 13 C.I.T. 516, 715 F. Supp. 1113 (1989), states that there are different types of factual mistakes. It is stated in the decision that there is the decisional mistake in which a party may make the wrong choice between two known, alternative set of facts; there is also the ignorant mistake in which a party is unaware of the existence of the correct alternative set of facts. The decisional mistake must be remedied under Section 514 (19 U.S.C. 1514). Id. at 518.

It is well established that a mistake made in the classification of goods, either by the Custom's agent or the importer, when all the facts are known is not a mistake of fact under 19 U.S.C. 1520(c)(1). When merchandise is misclassified despite full knowledge of the facts it is considered to be a decisional error and is considered a mistake of law. See Computine, Inc. v. United States, 9 CIT 553 (1985), Mattel, Inc. v. United States, 72 Cust. Ct. 257(1974), and Headquarters Ruling Letter (HQ) 222636 dated September 16, 1991. We see the final result of a claim of a decisional mistake in the declaration of value under 19 U.S.C. 1520(c)(1) to have the same result as a claim of a decisional mistake in the misclassification of merchandise.

In the protest at issue no evidence was provided by the protestant to show that he was not aware of the fact that the fabric had been cut to a smaller size. The mistake that was made was a decisional mistake in declaring the wrong value amount. This is a mistake of law that is remedied under 19 U.S.C. 1514; this is not a mistake of fact that is remedied under 19 U.S.C.

HOLDING:

There is no evidence presented by the protestant that would substantiate a claim for reliquidation under 19 U.S.C. 1520(c)(1). The mistake made in declaring the value on the original width of the fabric was not a mistake of fact; it was a
decisional error.

The protest should be denied in full. A copy of this decision should be attached to the CF 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John A. Durant, Director

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